Use of Excessive Force and Extrajudicial
Killings by Police

In Kenya there are three branches of police:
the regular Kenya Police; the General Service Unit (GSU), a specialist unit
trained in riot control; and the Administration Police, a division initially
established to protect the administration but deployed to assist the regular
police where necessary. All three branches in any given region are subject to
the ultimate control of the Provincial Police Officer (PPO), advised by the
District and Provincial Security Committees, chaired by the District
Commissioner and Provincial Commissioner respectively.[60]

The Kibaki government reacted to the public
outrage that greeted its declaration of victory in the presidential poll by
imposing a blanket ban on public demonstrations. The ban was illegal under
Kenyan law and contrary to international standards.[61] The
government tried to defend the ban as necessary to prevent violence in the wake
of the polls.[62]
As it turned out, however, heavy-handed police enforcement of the protest ban,
including the use of excessive force, claimed hundreds of Kenyan lives, often
in circumstances where the police's use of lethal force was unjustified.

In late
December police in Nairobi and many towns were confronted by demonstrations
that rapidly turned into riots involving looting. During the course of breaking
up demonstrations and riots, police used live ammunition, leading in many
instances to deaths.[63]
The majority of police killings investigated by Human Rights Watch, however,
took place as police subsequently tried to contain in the slums persons they
believed might try and join demonstrations. Police action included the shooting
of unarmed protesters and bystanders, including women and children, without any
initial attempt to use non-lethal force, and in situations where there was no
apparent imminent threat to life or property.

Shootings by police in Kisumu in late
December are described below. Similar patterns were seen in Nairobi, and again
in mid-January in Kisumu, where Human Rights Watch witnessed firsthand the use
of live ammunition to disperse protesters during the second round of protests
on January 16 and 17.

Some policemen interviewed by Human Rights
Watch spoke of an unofficial 'shoot-to-kill' policy, although commanders told
researchers that police officers are supposed to exercise their own judgement
in the use of firearms.[64]
The Provincial Police Officer in Kisumu told Human Rights Watch that she
ordered her officers to use live ammunition. One officer in Nairobi explained:

Some
of the things we are asked to do. As a human being, we have brothers, sisters.
It is difficult to obey illegal orders. The shoot to kill policy is illegal. It
is wrong. Only if things get out of your hands should that be necessary.[65]

Across the country, it is clear the police
were overwhelmed. But officers in different parts of the country responded to
their difficult circumstances in starkly different fashion. Inevitably in the
political and polarized context of events, this raises questions about political
interference in policing, or the politicized nature of police commands, as well
as about police competence and capacity. For example, officers were quick to
resort to lethal force in opposition areas such as the slums of Nairobi, Kisumu, and elsewhere when lives were not obviously at risk. And yet when faced
with pro-government mobs killing and burning in Naivasha and Nakuru, the police
made little attempt to intervene at all. In other areas such as Eldoret and
Molo/Kuresoi, victims alleged that the police sided with Kalenjin militias.[66] In Nakuru and
Naivasha, eventually, the Kenyan army was deployed to disperse violent gangs,
and did so with relatively little loss of further life. This uneven police
response requires further investigation. Issues of partiality are discussed in
the 'Response of the Kenyan Government' section.

The Scale and Impact of Police
Shooting

Spontaneous
protests erupted all over the country following the announcement of Kibaki as president
on December 30, 2007. Media and human rights groups reported scores of deaths
as protests turned violent in confrontation with the police. In Mombasa, local human rights investigators counted 20 people shot dead by police in the
first few days following the announcement of Kibaki's victory.[67] In Nairobi, each day of the crisis brought fresh reports of shootings by police.[68]
In towns across the West of the country–Kisumu, Kericho, Homa Bay, Kakamega, and Molo-reports came in of people killed by the police.[69] In
Eldoret, journalists and human rights activists told Human Rights Watch that
many of the bodies arriving at the morgue of the Moi Teaching and Referral Hospital during the first week of January were shot by police.[70]

This initial
wave of police killings provoked outrage in the media and among the human
rights community but did not lead to a change of police tactics. The opposition
called three days of protests for January 16, 17, and 18. This brought on more
clashes with the police and more deaths.[71] As of January 21, the
police confirmed to Human Rights Watch that police officers had shot dead 81
people nationwide, and injured many others although they had no record of the
total number of wounded. The police claim that in many of these cases the use
of force was justified.[72]

The total number of people killed by police
during January and February 2008 is almost certainly higher than 81. According
to the incidents reported in The Standard newspaper in only a few
districts in Nyanza and Rift Valley provinces, police shot dead over 205 people
up to the middle of February.[73]
The Law Society of Kenya's South Rift branch estimates that over 100 people may
have been shot dead by police in the Southern Rift alone, not including many
places where scores of people shot by police were reported, such as Kisumu,
Eldoret, and Nairobi.[74]
Among the most damning facts is that in nearly every location there are reports
of police shooting unarmed children.[75]
In Kisumu Human Rights Watch spoke to three girls shot and wounded by police
near their homes.[76]

As of February 4, the police were
investigating their own use of force (including cases where there were no fatalities)
in 142 cases nationwide. However, as of February 21, only two policemen had
been charged with excessive use of force.[77] Even a cursory tally
of the incidents shows that many more investigations are warranted.

Massacre in Kisumu

The most egregious example of excessive use
of force by police was in the city of Kisumu on the eastern edge of Lake Victoria. On Saturday, December 29 and Sunday, December 30 protests in Kisumu town
degenerated into violence and looting before and after the announcement of
Kibaki's victory.

Kisumu is a
stronghold of ODM presidential candidate Raila Odinga, whose family has its
roots in the area and where nearly all young Luo men are opposition supporters.
The police said they believed they were dealing with a population on the verge
of insurrection and indeed, many young men expressed revolutionary sentiments
to Human Rights Watch.[78]
The poor parts of the city have a reputation of being the most militant,
including the slum areas of Manyatta, Kondele, and Western Junction, and it is
in these particular parts of town where the police were deployed on Saturday
and Sunday after looting took place in the center of
the city on Saturday morning.

According to
eyewitnesses, on December 29 protests took place in all neighborhoods of Kisumu as local youths set tires on fire and erected roadblocks.
Some protesters managed to reach the city center and
immediately began looting and burning shops, but others were contained in the
slums by police.[79]
According to the police and provincial and district authorities, they tried but
failed to disperse looters through non-lethal means.[80] The
Provincial Police Officer for Nyanza Province, which includes Kisumu,
acknowledged to Human Rights Watch that she ordered her officers to use live
ammunition to disperse the looters because the police were "overwhelmed" and
"caught off guard" by the ferocity and size of the violent crowds: "I gave that
order to shoot, things were getting out of hand."[81] The
PPO and the district commissioner acknowledged that the crowds did not have
guns, but claimed that the police shooting was justified to control the looting
in the center of town.[82]

However, Human Rights Watch investigations
found that the majority of people shot in Kisumu died in the residential slum
areas far from the shops in the commercial center. According to records kept by
officials of the opposition ODM party who counted the bodies arriving at the
morgue in Kisumu, around 10 people were shot dead by police in the city center,
all the other bodies were delivered from slum areas.[83] While looters were present in the city center on Saturday, December
29, the police succeeded in pushing the protesters back into the slums. The
district commissioner told Human Rights Watch that the strategy was to, "get
them out of town, push them into the slums and then prevent them from
returning."[84]
Long after the crowds in the city center dissipated,
police drove into the slums on the evening of December 29, and throughout the
day of December 30 and opened fire directly and without warning on any group of
people they deemed suspicious.

Human Rights
Watch interviewed several victims who did not flee from advancing police in the
slums because they did not imagine that the officers would open fire on them.
For example, on the evening of December 29, a group of boys gathered in
Manyatta to protect their employer's hardware store from potential looters.
According to the boys, the police did not stop to ask what they were doing,
they simply started shooting. One of them was shot in the leg and had to have
it amputated. According to another who was present at the scene:

There
were two people shot on the other side of the road, shot dead. They were lying
on the side of the road, bleeding from the head. People thought they [the
police] were firing in the air, that's why we were not running away. But when
we realised that they were firing live that's when I said, 'hey, let's run away
from here.'[85]

A local priest and a bus driver both
described to Human Rights Watch the killing of an 11-year old boy and a young
woman shot in the afternoon of December 29 when police dispersed the crowd in
Manyatta with live rounds. According to the bus driver:

On
[December] 29 there was a disturbance so I went to park my bus. I saw a police
car coming. Some of them inside were shooting from the windows. Three were
shooting in the air, one was shooting directly at people… I saw a mother
falling down, the bullet had hit her in the head. I also saw a child fall down.
The child had turned and was hit in the stomach. The crowd ran away and left
the injured there.[86]

Residents of Manyatta, Kondele, and Western
Junction, the three main residential areas of Kisumu where police were deployed
to prevent crowds assembling, described to Human Rights Watch how the police fired
indiscriminately.[87]
Another man who had gone shopping was returning home when he was shot by police
without warning, sustaining injuries to the back of his head:

On
[December] 29, I went to the market at 8 a.m. to get food. We heard the noise
of rifles shooting. I was by Magadi Catholic Centre. I saw a police saloon car
with 'highway patrol' written on it. Two policemen came out and started
shooting in every direction. As people were running, the police were shooting
at those who were running away. The policeman came and looked at me lying down.[88]

In Kondele, a fifteen-year-old boy was shot
from behind on the evening of December 30 while fleeing in terror from
policemen who had opened fire without warning at a crowd of ODM supporters. He
told Human Rights Watch:

It was
evening. There was a group of boys, celebrating and carrying pictures of Raila
– they thought he had been announced as the winner. As they were going up the
road, I joined them, celebrating also…. We heard gunshots, so everybody was
running for his life. I was ahead of my cousin so I went back to look for him.
I found myself near the police Land Rover. They had put off the headlights of
the car. I realised that I was near because I heard a gunshot. I started
running. Then I heard a second one. When I tried to step forward my leg had no
power, I fell down.[89]

He spent the night bleeding in the dirt
near the side of a road. A week later he remained in constant pain because his
family could not afford to see a doctor, buy pain medication, or even find a
pair of crutches to help him move around.

According to
the Nyanza PPO, on December 29 and 30 the police recovered 33 bodies of people
who had been shot or burned alive on those days.[90] At Nyanza General Provincial Hospital, the medical superintendent confirmed that 44 people
brought to the morgue between December 28 and January 11, as a result of the
violence, had died from gunshot wounds. From the pattern of the gunshots, it
appears that the police were shooting to kill males but that the female and
child victims were caught by stray bullets. The medical superintendent at the
hospital reported that most of the males who had been shot (whether dead or
injured) were shot in the body or the head: "Direct hits," she said, whereas
wounds of the few women and children were more random, "all over the body."[91]
Three girls in Nyanza General Hospital who were shot and wounded were all hit
by stray bullets, one in the arm, one in the leg and one in the foot.[92] The two men in the
Intensive Care Unit visited by Human Rights Watch on January 14 were, by
contrast, both shot in the body, one in the neck and one in the chest. AAs of January 14, 59 inpatients in Nyanza Hospital had gunshot wounds and 138 outpatients had been treated for gunshot wounds.[93]
The police acknowledged that all of those shot were likely shot by the police.[94]

Despite outrage in the press,
investigations by the Kenya National Commission on Human Rights on January 14,
and a pledge by the PPO to Human Rights Watch that there would be no more
deaths,[95] on
January 16 the police used the same tactics when faced with fresh protests. The
sound of police gunfire rang through the streets throughout the day on January
16 as Human Rights Watch interviewed victims from the previous rounds of
violence in residential areas of Kondele and Manyatta. That afternoon Kenyan
television showed a police officer in Kisumu shooting a man who had been making
faces at him-a clearly deliberate act of brutality compounded further by the
police officer then walking over to kick the man as he fell to the ground and
died.

On January 16
no protests took place in the city center and those that took place in the
residential slum areas observed by Human Rights Watch were minimal, mostly
consisting of a dozen or so youth burning tires, shouting and singing, unable
to advance to town beyond the line of police. And yet eight people were shot
dead by police in Kisumu on January 16, including a ten-year-old boy playing
outside his home.[96]

Police Shootings in Nairobi Slums

While events in Kisumu present one of the
clearest examples of excessive use of force by police, what happened there was
not unique. Police in Nairobi also shot demonstrators under circumstances that
were clearly unjustified.

From the beginning of the disturbances on
December 28 and 29 when it became clear that the announcement of Kibaki as president
had sparked trouble, the police strategy seemed to be, as in Kisumu, to contain
the protesters in the slum areas of Mathare, Kibera, Dandora, Kariobangi, and
others. Witnesses and victims alike confirmed to Human Rights Watch that the
protestors were unable to leave the slums because of police interventions,
often brutal and fatal.[97]
Kenyan television stations carried scenes of police firing tear gas and live
ammunition to disperse protesters in the narrow twisting alleyways of the slums
day after day throughout January.

Local human
rights workers in one area of Kibera slum recorded nine people shot dead by
police and 19 injured between December 27 and January 10.[98] In
Mathare, residents reported people shot dead and bodies dumped in the Nairobi river.[99]
The Independent Medical and Legal Unit, a respected Kenyan human rights NGO comprising
doctors and lawyers, reported around 50 bodies in Nairobi mortuaries in the
first half of January, dead from gunshot wounds, most likely killed by the
police.[100]

One young man, a resident of Mathare who
was caught up in demonstrations on December 31 and shot by police described his
experience to Human Rights Watch:

In the afternoon I went to Gateway to see
my brother. At Gateway, I stopped, I saw the GSU [riot police]. There was a
fracas with some youth. GSU were advancing. I saw them about 10 metres away.
Then I fell down, there was a bullet in my leg, they shot me. I saw one of them
aim at me….[101]

The use of live rounds in Kibera and
Mathare slums, some of the most densely populated areas in the world, was
highly irresponsible and caused death and injury to many innocent bystanders.
Slum dwellings are made of wood, sacking, and tin sheets, easily pierced by
bullets. One woman was hit in the chest at 8 a.m. in the morning on December 31
as bullets came through the wall of her home.[102]
Another man was shot and killed the same day when he opened the door of his
home to see what was going on in Kibera, as a worker at the local mosque told
Human Rights Watch:

On [December] 31 at 9 a.m. on Karanja Road, I was carrying wounded people who had been shot by police. A young man opened
the door of his house to see what was going on. Police aimed at him and shot at
him three times. The first two missed, but the third bullet got him.[103]

The policeman responsible for the latter
killing, which was clearly deliberate given the repeated shooting, should be
held accountable for his actions.

Human Rights Watch also documented cases of
policemen hurling canisters of tear gas into families' homes in Nairobi slums; a strategy clearly unconnected to the controlling of crowds or protecting
life and property. As one witness told Human Rights Watch:

I saw
two men shot in the leg by policemen around 9 a.m. on January 1…. the policemen
were threatening people to get out of the way and firing tear gas, they were
also firing tear gas into houses, many children were affected, coughing and so
on.[104]

[61]Kenyan
and international law prohibits a general ban on demonstrations. Under Kenyan
law, (section 5 of the Public Order Act, 1950, as amended 1997) those wishing
to demonstrate must notify the police and the police can reject the request on
the grounds of public order, but no law permits the authorities to impose a
blanket ban on public assembly. Under the International Covenant on Civil and
Political Rights, which Kenya ratified in 1972, a state may only impose
restrictions on the right to peaceful assembly that are strictly necessary to
maintain public order. This rules out widespread, nationwide bans on
demonstrations.

[63]
The United Nations Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials call upon law enforcement officials in the dispersal of violent
assemblies to use firearms only when less dangerous means are not practicable
and only to the minimum extent necessary. Lethal force may only be used when
strictly unavoidable to protect life and only when less extreme means are
insufficient to achieve these objectives.

[74]Gideon
Mutai, LSK branch chair for South Rift told The Standard: 'The number of
those gunned down could be more than 100 as most of them are not documented.'
See Vitalis Kimutai, "Quiet burial for victims of police brutality," The
Sunday Standard, February 17, 2008.